Endemic cases of awaiting trials and prison congestion

By Kayode Olabanji
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For a prison originally built to house 160 inmates, to now have 860, why is this so?

Is it because the rate at which people are incarcerated exceeds the rate of prisoner released?

HOPE LAW asked some legal practitioners to shed light on the causes of prison congestion and how they can be decongested.

An Akure based practitioner, Mr Tosin Sunday Eye (esq) said that the major cause of prison congestion is the high number of “awaiting trial” inmates.

His words: “If you want to identify a problem you have to look at the root. Every inmate that you see, for instance in Olokuta prison in Akure, was first in the custody of the police or other law enforcement agencies.

“Many times it may be known that a petition is not strong enough, yet, the case is charged to the court.

“It is not every case that comes to the police station that deserves to be taken to the court. It is only those who are strong enough to be proved.

“You must be able to establish that the individual actually committed an offence or was in the process of committing it when you arrested him.

“You must have that reasonable suspicion. Without that, if the person is charged to the court, you have definitely added more to the problem.

“When the defendant is charged to court, there is a procedure that needs to be followed and if certain conditions are not met, he or she becomes another inmate in Olokuta medium prison.

“A common example is when a defendant is brought to the Magistrate Court on a charge of murder. According to section 269 of the Administration of Criminal Justice Law (ACJL) Ondo State 2015, you must bring an application for remand supported with the ground and an affidavit.

“The Police know that the Magistrate court has no jurisdiction over the matter, yet they bring the defendant there to get him remanded. That is how the Police contributes to the congestion of prison.

“When we look at the decision of FRN v. OSAHON (2006) 5 NWLR (PT.973) 361; 2. OLUSEMO V. COP (1998) 11 NWLR (PT.575) 547, 558, both Supreme Court decisions said it clearly that the police has the power to prosecute anywhere, even up to the Supreme Court.

“So why not proceed to the High Court and file the petition there, knowing that you have the power to do so?

“We all say that the defendant is presumed innocent under the provision of section 36 sub 5 of 1999 constitution. But someone who is presumed innocent is in Olokuta prison for 100 days. Where is the presumption of innocence?

“Another angle to this problem relates to the court. The truth is that more than 90percent of the inmates at Olokuta are awaiting trial and at least 70percent to 80percent of them are sent there by the Magistrate Courts.

“For example, if someone is brought to the court for stealing a bag of rice valued N16,000, the ACJL provides that the charge should be read to the defendant and the next stage is bail. If the defendant cannot satisfy the bail conditions, he will be at Olokuta awaiting trial.

“There is this view that people have that ACJL (2015) is only retributive in nature. It is not. If you look at some specific provisions, particularly section 385 and section 388, you will know that ACJL does not want the prison to be congested.

“That is why it says in section 384/2/paragraph XI, that imprisonment should apply only to those offenders who should be isolated from the society and with whom other punishments have failed or is likely to fail.

“These are People that evidence has shown are armed robbers, those who are violent, someone who committed rape with evidence strong enough to back that up, or someone that breached the peace of the society.”

According to him, “ACJL states that there are other ways of punishing the criminal, not just being retributive. You could have community service, probation, parole, suspended sentence and payment of fine in lieu of imprisonment. The goal of ACJL is to reform.”

Mr Adolphus Anaekwe (esq), in his own submission sees things differently and said that, “When the prison is congested, it is because the prison facility is not enough, that is the way it appears.

“For instant, when a room is congested for a family, that means the people in there are growing in number and you have to expand the room or provide two rooms.

“The leader will say to himself, ‘what should I do to expand; or do I stop bearing more children?’ The man may decide to stop bearing children.

“If a larger facility is provided, we will stop talking about prison congestion.

“If a prison was built in 1980s with the capacity of 200 inmates and has remained the same, no difference, no expansion or extension, can you compare the rate of crime then to now? There is a big difference. Even the population in the country then cannot be compared to now.

“But if the facility is expanded, will it peg the number of people coming in? It may not. Within three to five years we might start having the same problem again, so how long are we going to be expanding the facilities?

“There is much that the police can do in this regard.

“The Supreme Court has cautioned them in so many ways, saying that the police have to advice the complainant or the petitioner to do a thorough investigation, weigh the strength of the case, instead of serving the interest of the complainant for a reason which is part of corruption.”

Anaekwe further said that the Magistrate should sometime go to the prison to see how things are in there, because some people has been forgotten at the prison awaiting trial.

“The ACJL has given some solutions to that. So that no one would be forgotten in the prison, there are provisions for regular review on capital offences, to see that the right thing is done,” he said.

While speaking with HOPE LAW, the two legal practitioners, emphasised some of the risk facing inmates as a result of prison overcrowding.

They opined that operating prisons over maximum capacity is expensive, inconvenient and dangerous for both prisoners and warders. The condition of the prison becomes worse, there is the high risk of diseases spreading and higher level of stress among inmates and staff. It also increases the risk of violence and prison riots.

They said, not only should the capacity of prisons be increased, new ones should be constructed.

In addition, they expressed the believe that the matter of inmates that may be eligible for early release for parole should be regularly looked into.